Initial Judgment

Robert Gould, aged 8 at the time of the treatment in question, was initially successful in his medical negligence claim relating to a public hospital’s failure to treat a severe thumb injury, including an open fracture, with gentamycin (antibiotic). This resulted in infection, gangrene and amputation of the tip of the thumb.

By law, a professional is not liable (responsible) in a medical negligence case if they prove that they acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice, unless that peer professional opinion is considered by the Court to be irrational. This is known as the “peer Defence.”

In this case, the hospital relied on this Defence and obtained medical expert evidence that relevant therapeutic guidelines for antibiotics did not recommend the use of gentamycin to treat open fractures.

The trial Judge found that this Defence was not established because the peer professional opinion was “irrational.” In reaching this conclusion the trial Judge interpreted the term “irrational” to refer to reasons that are illogical, unreasonable, or based on irrelevant considerations.

The trial Judge ultimately held that the defendant was negligent for failing to appropriately treat the injury with early administration of antibiotics like gentamycin and that this caused the injuries which led to the need for amputation.

Appeal Judgment

The defendant appealed the Judgment. The NSW Court of Appeal:

  • disagreed with the initial trial Judge’s interpretation of the term “irrational” and commented that “…It will only be if the court can, on the evidence, be satisfied that there is norational basis for it that it can properly be rejected…”
  • found that the peer Defence had been proven by the defendant as the opinions from the experts that gentamycin would or should not have been given, in accordance with competent professional practice at that time, was not irrational. Accordingly, Robert Gould was ultimately unsuccessful in his claim.

Get in touch with us

This case demonstrates that medical negligence litigation can be complex and therefore it is vital to ensure that every matter is investigated with skill and expertise.

At Turner Freeman we have lawyers who specialise in medical negligence claims. Our Sydney Partner, Sally Gleeson, along with her team of lawyers, have a dedicated practice in medical law.

If you or someone you know has suffered as a result of medical negligence, including a situation in which you have suffered injury as a result of inadequate treatment, or a lack of treatment at a public hospital, we encourage you to call us on 13 43 63 to speak with one of our medical law experts.